Montes Lopez (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Montes Lopez, who sought review of a decision to refuse his Employer Nomination (Permanent) (Class EN) visa application. The dispute centred on whether a subsequent, approved nomination by the applicant's employer could satisfy the requirements of clause 186.223 of the Migration Regulations 1994, despite the initial nomination being refused by the Department.

The primary legal issue before the Tribunal was to determine whether clause 186.223, which requires an approved nomination for a Subclass 186 visa, could be satisfied by a nomination lodged after the initial visa application and after the first nomination was refused. Specifically, the Tribunal had to consider whether a new nomination, lodged by the same employer for the same position and subsequently approved by the Department, could be linked to the applicant's visa application, particularly in light of the applicant having made a new Employer Nomination declaration.

The Tribunal acknowledged that clause 186.223(2) requires the nomination to be approved. While the Department had initially refused the first nomination and proceeded to refuse the visa application on that basis, the applicant's representative provided evidence that a second nomination had been lodged and subsequently approved by the Department. The Tribunal noted previous AAT decisions and a Federal Court of Australia Full Court decision in *Singh v MIBP* [2017] FCAFC 104, which suggested that a subsequent approved nomination could meet the requirements of clause 186.223. The Tribunal found that the applicant had made a new declaration in relation to the second nomination and that requiring a new visa application would cause financial hardship and be an unreasonable exercise.

Ultimately, the Tribunal concluded that the interpretation of the relevant provision and legislative changes during the processing of the review application had led to an unfair result. While affirming the decision not to grant the visa, the Tribunal referred the matter to the Minister for consideration under ministerial intervention guidelines.